1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-19-1995

United States v Robert Holifield

Precedential or Non-Precedential:

Docket 94-3424

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Recommended Citation

"United States v Robert Holifield" (1995). 1995 Decisions. Paper 105.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/105
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ________________ 

 Nos. 94-3424 & 94-3426 

 ________________ 

 UNITED STATES OF AMERICA 

v. 

 ROBERT HOLIFIELD, a/k/a Jim Davis, 

 a/k/a Philip Sharp, a/k/a David Jones 

 Robert Holifield, 

 Appellant 

 ___________ 

 No. 94-3425 

 ___________ 

 UNITED STATES OF AMERICA 

v. 

 ROBERT A. HOLIFIELD 

 Robert Holifield, 

 Appellant 

 _______________________________________________ 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. Criminal Nos. 94-cr-00003J, 

 94-cr-00011J & 94-cr-00012J) 

 ___________________ 

 Argued January 30, 1995 

 Before: SCIRICA, ROTH and SAROKIN, Circuit Judges

 (Filed April 19, 1995) 

 KAREN S. GERLACH, ESQUIRE (Argued) 

 Office of the Federal Public Defender 

 960 Penn Avenue 

 415 Convention Tower 

 Pittsburgh, Pennsylvania 15222 

 Attorney for Appellant 

 BONNIE R. SCHLUETER, ESQUIRE (Argued) 

 Office of the United States Attorney 

 633 United States Post Office & Courthouse 

 Pittsburgh, Pennsylvania 15219 

 Attorney for Appellee 

 __________________ 

 OPINION OF THE COURT 

 __________________ 

SCIRICA, Circuit Judge. 

 Defendant Robert Holifield pled guilty in 1994 to five 

counts of wire fraud in violation of 18 U.S.C. § 1343 (Supp. V 

1993). The sole issue on appeal is whether the district court 

acted within its discretion in its application of the United 

States Sentencing Guidelines. We will affirm. 

I. 

 From March 13, 1992, to June 12, 1992, Holifield 

engaged in a wire fraud scheme in the Middle and Western 

Districts of Pennsylvania. Holifield telephoned various persons, 

falsely representing himself to be a corporate officer of Diamond 

Marketing Company, V.I.P. Promotions, and other companies. After 

advising them they had won prizes through a sweepstakes drawing, 

Holifield told them that it was necessary to pay an advance fee 
to cover expenses and taxes on the prize. He then instructed 

them to wire the money to Western Union offices in Pennsylvania 

and Georgia to persons that he claimed were company associates. 

The scheme caused losses to five individuals totaling more than 

$25,000. 

 Two years earlier, from December 1, 1989, through 

November 1, 1990, Holifield engaged in a similar scheme in the 

Northern District of Georgia, this time purportedly as a salesman 

for International Marketers, Incorporated. Holifield also 

trained others to be salespersons for IMI. Three victims in this 

scheme lost a total of $2,700. The cases from the Northern 

District of Georgia and the Middle District of Pennsylvania were 

transferred to the Western District of Pennsylvania under Federal 

Rule of Criminal Procedure 20 and were consolidated for purposes 

of disposition ("the Pennsylvania charges"). 

 At the time the Pennsylvania charges were filed, 

Holifield was serving a 21-month sentence for another wire fraud 

scheme in which he posed as an Internal Revenue Service agent 

during February 1993. That charge was filed in the District of 

Colorado, and Holifield pled guilty in August 1993. 

 As we have noted, Holifield later pled guilty to five 

counts of wire fraud in the Western District of Pennsylvania. 

The guideline range for each count was 15-21 months imprisonment. 

He was sentenced to 15 months on each count, each to run 

concurrently and also concurrently with the remaining time on the 

Colorado sentence, which was four months. 
 The district court had jurisdiction pursuant to 18 

U.S.C. § 3231 (1988). We have jurisdiction under 28 U.S.C. § 

1291 (1988). Our review of the construction of the Sentencing 

Guidelines is plenary. United States v. Nottingham, 898 F.2d 

390, 392 (3d Cir. 1990). 

II. 

 Under 18 U.S.C. § 3584 (1988), a sentencing court is 

permitted to order a defendant's sentence to run either 

concurrently or consecutively to another sentence imposed at the 

same time or to an earlier, undischarged term of imprisonment. 

That discretion is subject to § 5G1.3 of the United States 

Sentencing Guidelines, which was promulgated in response to the 

statutory duty imposed upon the Sentencing Commission to include 

in the guidelines "a determination whether multiple sentences to 

terms of imprisonment should be ordered to run concurrently or 

consecutively." 28 U.S.C. § 994(a)(1)(D) (1988). 

 The government and Holifield apparently agree that § 

5G1.3(c) governs this dispute.1 Subsection (c) provides that 

"the sentence for the instant offense shall be imposed to run 

consecutively to the prior undischarged term of imprisonment to 

the extent necessary to achieve a reasonable incremental 

 

1. Subsection (a) of § 5G1.3 requires consecutive sentences when 

the sentence is for a crime committed while the defendant was 

serving a term of imprisonment, or after sentencing for, but 

before commencing service of, such term of imprisonment. 

Subsection (b) applies when subsection (a) does not apply, and 

calls for concurrent sentences when the undischarged term of 

imprisonment resulted from an offense that has been fully taken 

into account in the determination of the offense level for the 

instant offense. 
punishment for the instant offense." U.S.S.G. § 5G1.3(c) (Policy 

Statement) (emphasis added).2 The Commentary's Application Note 

to subsection (c) states that a consecutive sentence is not 

required when reasonable incremental punishment can be achieved 

through the use of a concurrent sentence. The note then explains 

what is meant by "reasonable incremental punishment": 

 To the extent practicable, the court should 

consider a reasonable incremental penalty to 

be a sentence for the instant offense that 

results in a combined sentence of 

imprisonment that approximates the total 

punishment that would have been imposed under 

§ 5G1.2 (Sentencing on Multiple Counts of 

Conviction) had all of the offenses been 

federal offenses for which sentences were 

being imposed at the same time. 

Id. § 5G1.3 (Commentary).3

 

2. The policy statements and commentary contained in the 

guidelines are binding on the federal courts. See, e.g., Stinson 

v. United States, 113 S. Ct. 1913, 1919 (1993) (commentary "must 

be given 'controlling weight unless . . . plainly erroneous or 

inconsistent'" with the guidelines); Williams v. United States, 

503 U.S. 193, 201 (1992) (policy statement serves as "an 

authoritative guide to the meaning of the applicable Guideline"). 

3. The Commission has provided illustrations of how § 5G1.3 is 

to work. In one illustration a guideline range for the instant 

federal offense is 24-30 months. The court determines that a 

total punishment of 36 months would appropriately reflect the 

instant federal offense and the offense resulting in the 

undischarged term of imprisonment. The undischarged sentence is 

an indeterminate term of imprisonment with a 60-month maximum, of 

which 10 months have been served by the defendant. In that case, 

according to the illustration, a sentence of 26 months 

imprisonment, to be served concurrently with the undischarged 

sentence, "would (1) be within the guideline range for the 

instant federal offense, and (2) achieve an appropriate total 

punishment (36 months)." U.S.S.G. § 5G1.3 (Illustration A). 
III. 

 Holifield argued, and the district court apparently 

agreed, that had the sentences on the Pennsylvania and Colorado 

charges been imposed at the same time, the maximum sentence he 

could have received would have been 24 months. At the time 

Holifield was sentenced on the Pennsylvania charges, he had 

served 17 of the 21 months on the Colorado offense. Thus he 

argued that § 5G1.3 required that his sentence on the 

Pennsylvania charges run no more than seven months and 

concurrently with his undischarged sentence, or three months and 

consecutively to the remaining four months of his undischarged 

sentence. In either case, Holifield contended that § 5G1.3 

required that he serve no more total time than he would have 

served had he been sentenced on all the offenses at the same time 

(24 months). In addition, Holifield argued that any sentence 

resulting in a greater total punishment was an upward departure 

from the guidelines and required prior notice in accordance with 

Burns v. United States, 501 U.S. 129, 138-39 (1991). As we have 

noted, the district court disagreed and Holifield raises the same 

issues on appeal. 

 The government responds that Congress intended to vest 

district court judges with discretion to run sentences 

concurrently or consecutively. Although the government concedes 

§ 5G1.3 must be considered by the district court, it claims that 

a strict application of that section's methodology is not 

necessary. 

A. 
 Section 5G1.3 provides guidance in determining whether 

to run a sentence concurrently or consecutively. While it 

appears to permit a downward departure from the applicable 

guideline range to meet its objectives, it does not create a 

sentencing scheme in itself nor does it require a downward 

departure. The Commentary to § 5G1.3 states: 

 Additionally, this methodology does not, 

itself, require the court to depart from the 

guideline range established for the instant 

federal offense. Rather, this methodology is 

meant to assist the court in determining the 

appropriate sentence (e.g., the appropriate 

point within the applicable guideline range, 

whether to order the sentence to run 

concurrently or consecutively to the 

undischarged term of imprisonment, or whether 

a departure is warranted). 

U.S.S.G. § 5G1.3 (Commentary) (emphasis added). 

 As the final clause in this part of the Commentary 

suggests, sentencing Holifield to less than 15 months to meet the 

general objectives of § 5G1.3 would have been a departure from 

the guideline range. And although § 5G1.3 would permit a 

departure, the Commentary clearly states that the methodology 

"does not, itself, require the court to depart."4

 This is also evident in one of the illustrations 

provided by the Sentencing Commission. In fact, although the 

 

4. Holifield's sentence was within the applicable guideline 

range for the instant offense. The fact that the sentence 

resulted in a period of incarceration longer than the "total 

punishment" calculated under § 5G1.3 does not make it an upward 

departure. Thus, Holifield's argument that there was a departure 

requiring notice and cause is without merit. 
figures are different, the illustration discusses a sentencing 

situation similar to the one the district court faced here: 

 The applicable guideline range for the 

instant federal offense is 24-30 months. The 

court determines that a total punishment of 

36 months' imprisonment would appropriately 

reflect the instant federal offense and the 

offense resulting in the undischarged term of 

imprisonment. The undischarged term of 

imprisonment is an indeterminate sentence 

with a 60-month maximum. At the time of 

sentencing on the instant federal offense, 

the defendant has served 22 months on the 

undischarged term of imprisonment. In this 

case, a sentence of 24 months to be served 

concurrently with the remainder of the 

undischarged term of imprisonment would be 

the lowest sentence imposable without 

departure for the instant federal offense. 

Id. § 5G1.3 (Illustration D). 

 With no departure from the guidelines, the defendant in 

the illustration would serve a total of 46 months, even though a 

total of 36 months would appropriately reflect the two offenses. 

While departure may be justified in such a circumstance, we 

believe that if departure was required, the Sentencing Commission 

clearly would have said so.5

 

5. In fact, this position was taken by John Steer, General 

Counsel to the United States Sentencing Commission, in a letter 

cited in Holifield's brief. Asked about downward departures in 

this circumstance under § 5G1.3, Steer wrote: 

 Occasionally, a downward departure may be 

necessary to make this provision work 

properly. For example, where the defendant 

has been in state custody for a long time, a 

downward departure may be the only feasible 

way to achieve an appropriate total 

punishment, assuming the court wishes to 

employ a departure to achieve the desired 

objective. 
 The Court of Appeals for the Fourth Circuit reached the 

same conclusion in a remarkably similar case. In United States 

v. Wiley-Dunaway, 40 F.3d 67 (4th Cir. 1994), the defendant 

embezzled $54,883 in West Virginia before her actions were 

discovered. She fled to the Virgin Islands, where under an 

assumed name she embezzled another $52,279. She pled guilty in 

the Virgin Islands district court and received a 21-month 

sentence.6

 After she was sentenced, the defendant was indicted for 

her West Virginia crimes. She pled guilty in federal court in 

West Virginia and received a 15-month sentence to run consecutive 

to the Virgin Islands federal sentence, which had less than three 

months remaining. The district court, in sentencing, did not 

address § 5G1.3. 

 On appeal, the Fourth Circuit followed the methodology 

of § 5G1.3(c). The court noted that the sentencing range for the 

instant offense was 12 to 18 months, and the defendant argued the 

maximum she could have received for the combined offenses was 24 

months. Subtracting the 21-month sentence she had received for 

(..continued) 

Letter from John Steer, General Counsel, United States Sentencing 

Commission, to Tony Garoppolo, Deputy Chief U.S. Probation 

Officer 8 (January 6, 1994) (emphasis added). 

6. The defendant also pled guilty to a Virgin Islands 

territorial offense for which she received a 60-month sentence to 

run concurrently with the federal sentence. At the time of 

sentencing for the West Virginia offenses, she had only four 

months remaining until she became eligible for parole for this 

territorial offense. United States v. Wiley-Dunaway, 40 F.3d 67, 

69 (4th Cir. 1994). 
the Virgin Islands federal offense, the defendant contended she 

could only receive a 3-month "reasonable incremental punishment" 

for the instant offense. The Fourth Circuit rejected the claim, 

holding that: 

 [T]he minimum range for the instant West 

Virginia offense is 12 months. Accordingly, 

the minimum sentence to which Wiley-Dunaway 

could have been sentenced under these 

assumptions, without a downward departure, is 

a 12-month sentence to run concurrently with 

the remainder of the term imposed by the 

District of the Virgin Islands, and 

consecutively thereafter. 

Id. at 71. The court remanded the case to the district court, 

but only because it had not considered § 5G1.3 at the time of 

sentencing. Id. at 71-72. 

 It is important to note the methodology of § 5G1.3 

vests discretion in the trial judge. It does not require a 

departure from the guideline range for the instant offense. 

Thus, when a defendant has been in custody for a substantial 

amount of time and the sentencing judge chooses not to depart, 

his total time served may be greater than it would have been had 

he been sentenced for all his crimes at once. In a letter, John 

Steer, General Counsel to the United States Sentencing 

Commission, indicated that a downward departure may be desirable 

when the increase is simply because of a delay in the defendant's 

trial or sentencing. See Letter from John Steer, General 
Counsel, United States Sentencing Commission, to Tony Garoppolo, 

Deputy Chief U.S. Probation Officer 8-9 (January 6, 1994). Yet, 

as the Fourth Circuit noted, "While that position has merit, it 

does not dictate the result or require a downward departure 

. . . ." Wiley-Dunaway, 40 F.3d at 71. 

 In this case, the sentencing court adhered to the 

methodology prescribed by § 5G1.3. Discussion of the application 

of § 5G1.3 spans fifty pages of the transcript of the sentencing 

hearing, as the court and prosecution and defense counsel 

proceeded step-by-step through the requirements of the guideline. 

See App. at 95-145. The court determined that § 5G1.3(c) applied 

to this case, not § 5G1.3(b), as defense counsel claimed. Id. at 

112, 114. The court also accepted the government's position that 

the instant offenses required a sentence range of 15 to 21 

months. Id. at 95. The government and defense then agreed the 

defendant had only four months remaining on his sentence for the 

Colorado offense. Id. at 97-99, 113-114. The parties noted it 

was uncertain whether, by combining the instant offenses with the 

Colorado offense, the total sentence would have been a maximum of 

21 or 24 months. Id. at 107, 115, 124, 142. 

 After those calculations, the court sentenced the 

defendant to 15 months on each count, to be served concurrently 

with each other and concurrently with the undischarged sentence 

on the Colorado charge. Although the court did not resolve the 

issue of whether 21 or 24 months was the proper combined maximum 

sentence, such a precise determination was unnecessary, given 

that the minimum sentence of 15 months on the instant offenses, 
coupled with the 17-month sentence already served, would surpass 

either the 21- or 24-month combined sentence. The court noted 

its 15-month concurrent sentence was "the lowest possible 

sentence [the defendant] could have received under subsection C 

[of § 5G1.3]. The Court could have gone no lower except had I 

departed and, in fact, I see no circumstances that would have 

warranted departure nor have any been set forth." Id. at 150-51. 

 We are satisfied that the district court fully followed 

the procedures suggested by § 5G1.3(c). Although the defendant 

did not receive a "combined sentence of imprisonment that 

approximates the total punishment that would have been imposed 

under § 5G1.2," such a sentence could not have been imposed here 

without a departure from the guidelines. As we have noted, such 

a departure is not required under § 5G1.3. See discussion part 

III.A; § 5G1.3 (Commentary). 

 Furthermore, the government points out that this case 

demonstrates the wisdom of leaving discretion in the hands of the 

district court. When Holifield pled guilty to the Colorado 

charge in August 1993, he chose not to disclose his illegal 

conduct from 1989 to 1992. Had Holifield come forward with that 

information in Colorado, he could have had all the offenses 

combined. Thus in this case, the increased total punishment is 

directly a result of a delay in the discovery of the offenses, a 

factor entirely in the control of the defendant. 

B. 

 Although we find the district court followed the § 

5G1.3(c) methodology, we would reach the same result here even if 
the district court had considered but rejected application of 

that methodology. As we have stated, the commentary to § 5G1.3 

provides: "To the extent practicable, the court should consider

a reasonable incremental penalty to be a sentence for the instant 

offense that results in a combined sentence of imprisonment that 

approximates the total punishment that would have been imposed 

under § 5G1.2 . . . ." (emphasis added). 

 The Court of Appeals for the Ninth Circuit has noted 

the "should consider" language of the commentary "falls somewhere 

between the 'may consider' language in the 1989 amendment and the 

'shall impose' mandate of the 1991 version." United States v. 

Redman, 35 F.3d 437, 440-41 (9th Cir. 1994), cert. denied, 115 S. 

Ct. 922 (1995). The Ninth Circuit concluded this language means 

that a district court "may decline to impose the sentence 

suggested by the commentary's methodology, if it has a good 

reason for doing so." Id. at 441. 

 [T]he court must attempt to calculate the 

reasonable incremental punishment that would 

be imposed under the commentary methodology. 

If that calculation is not possible or if the 

court finds that there is a reason not to 

impose the suggested penalty, it may use 

another method to determine what sentence it 

will impose. The court must, however, state 

its reasons for abandoning the commentary 

methodology in such a way as to allow us to 

see that it has considered the methodology. 

Id. We agree with this analysis and join the majority of 

circuits that have addressed this question in concluding that 

although the district court must calculate the "reasonable 

incremental punishment" according to the methodology, it need not 
impose that penalty.7 Instead, the court may employ a different 

method in determining the sentence as long as it indicates its 

reasons for not employing the commentary methodology. 

 In this case, the district court went through the 

methodology step-by-step with government and defense counsel 

before imposing its sentence. Furthermore, the court listed 

several factors that warranted a more severe sentence. The court 

noted the defendant's prior offense "had not been fully taken 

into account" in determining the offense level for the instant 

convictions. App. at 151-52. Furthermore, the court stated most 

 

7. See United States v. Wiley-Dunaway, 40 F.3d 67, 71-72 (4th 

Cir. 1994) (citations omitted) (§ 5G1.3 "only requires that the 

district court 'consider' such a sentence 'to the extent 

practicable' to fashion a 'reasonable incremental 

punishment.' . . . [T]he district court retains the right to 

depart from this suggestion in accordance with the Sentencing 

Guidelines."); United States v. Torrez, 40 F.3d 84, 87 (5th Cir. 

1994) ("[E]ven if the district court had considered this 

provision, it would have been free to decline to follow the 

suggested methodology."); United States v. Coleman, 15 F.3d 610, 

613 (6th Cir. 1994) ("[B]ecause the methodology 'is meant to 

assist the court in determining the appropriate sentence,' it 

will not always be necessary to follow the precise methodology 

called for under § 5G1.3 . . . since there may be circumstances 

which will warrant the court in resorting to a simpler method of 

achieving a result which is the practical equivalent of the more 

complex computations."); United States v. Redman, 35 F.3d 437, 

441 (9th Cir. 1994) ("[I]f the court finds that there is a reason 

not to impose the suggested penalty, it may use another method to 

determine what sentence it will impose."), cert. denied, 115 S. 

Ct. 922 (1995); United States v. Johnson, 40 F.3d 1079, 1084 

(10th Cir. 1994) (citation omitted) ("[C]ourts have recognized 

that 'it will not always be necessary to follow the precise 

methodology called for under § 5G1.3 . . . .'"). But see United 

States v. Duranseau, 26 F.3d 804, 810-11 (8th Cir.) (noting if 

methodology other than that in § 5G1.3 is used, the district 

court must employ a departure analysis), cert denied, 115 S. Ct. 

341 (1994). 
of the victims were elderly and the financial hardship the 

defendant caused was probably "irremediable." Id. at 152-53. 

Finally, the court noted the defendant's conduct was "parasitic 

and outrageous" and he had not shown any remorse for his actions. 

Id. Thus, although the district court properly followed the § 

5G1.3 methodology, we believe it also listed more than sufficient 

reasons for departing from that methodology if it had chosen to 

do so. 

IV. 

 We hold that the sentencing court properly applied the 

methodology of § 5G1.3, and was within its discretion when it 

chose not to depart from the guideline range of sentencing. 

Furthermore, we conclude that the sentencing court is not bound 

to follow that methodology as long as it indicates the rationale 

for its decision. For the foregoing reasons, we will affirm the 

judgment of conviction and sentence of the district court.